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The problem here is not so much with a judge or magistrate being ignorant of technical issues but rather with a set of laws or procedures that allows a prosecut
by grellas 16y ago
The problem here is not so much with a judge or magistrate being ignorant of technical issues but rather with a set of laws or procedures that allows a prosecuting authority to come in with a heavy hand to get onerous remedies without affording the affected party a proper opportunity to respond, at least at the first step in the proceeding.
As long as the affected party gets a fair opportunity to respond, that party will put contrary evidence and arguments before the judge or magistrate, including affidavits of experts who explain the relevant technical issues. Once a full record is before the court, issues tend to be fairly and properly decided.
Obviously, at the warrant stage in this proceeding, everything was one-sided. In such cases, at least at the ex parte phase, things will tend to be "rubber stamped" by an official, such as a magistrate, who probably has all of 10 or 15 minutes to devote to considering this particular item as one among what might be dozens of items presented to that official in a given day.
The key is always one of due process. If all sides get to present their case, judges and magistrates will tend to conscientious and well-supported decisions. They do not need specific technical training to be able to do this, as they will usually be well-educated by the affected party on whatever technical deficiencies might exist in the prosecutor's position. That obviously did not happen here because this particular step appears to have been decided based on a one-sided presentation only.
- graphene 16y agoWould you advocate making a conviction necessary for a dns takedown, or letting defendants make their case before a warrant is issued? Your comment seems to imply that the latter is not the case at the moment; if so, do you have any idea why not?
- WettowelReactor 16y agoAlthough your argument stands up for situations under normal due process the special exemption cases like this shift the burden of education and responsibility to the judge. In a case where no due process is given the judge needs to be held to a much higher standard. In this situation the judge’s order is a tremendous exercise of power which needs to be balanced with comparable responsibility and accountability.